In a Devolving Legal and Political Landscape, Cities are the Federal Government’s Secret Weapon on Climate – Climate Law Blog

Cities are often considered a niche focus for those who work in climate policy – a third level of government not directly captured in our country’s federal-state dichotomy, one occasionally commended for “stepping up” or showing “leadership” in the absence of climate action by Congress or in many states. There are good reasons for championing climate-ambitious local governments: around two-thirds of global greenhouse gas emissions are generated within or come from powering urban areas, and local officials are well-positioned to craft climate policy that is responsive to the needs of residents. Moreover, prior to passage of the 2022 Inflation Reduction Act (IRA), U.S. federal policy was largely characterized by a failure to meaningfully address the climate crisis, leaving cities and other local jurisdictions to step in. This gap-filling function was particularly apparent when cities across the country adopted as their own the goals of the Paris Climate Agreement, from which the U.S. withdrew during the Trump administration, but local governments have been pushing forward on climate in the absence of meaningful federal legislation for a long time.

With the passage of the IRA under the Biden administration, cities took on a new role – one as active partners to the federal government and implementers of its policy. Action by local governments to develop renewable energy generation, invest in electric vehicles and vehicle chargers, and help residents make their buildings more energy efficient through a mix of grant programs, tax credits, and inexpensive lending will be key to achieving the IRA’s goals. In the last few months, Pittsburgh touted its use of IRA incentives to expand electric vehicle uptake, Phoenix discussed its efforts to obtain grant funding for energy efficiency upgrades and resilient microgrids, and Charlotte installed a large solar energy project funded in part by IRA tax credits. Cities have also picked up the slack for states that failed to implement major aspects of the law, further cementing their status as critical partners in places where the federal government otherwise has trouble advancing its climate goals.

That the IRA changed the federal-local relationship on climate was driven by a dysfunction in Congress that rendered it unable to reach agreement among the 60 senators that would be required to break a filibuster. The IRA was instead passed through a process known as “budget reconciliation,” meaning that most of its provisions can be described as fiscal measures – appropriations for grant programs and incentives offered under the tax code, for example. The law does not require the federal government to do much itself to regulate emissions, but rather leverages monetary tools to enable others – cities included – to advance decarbonization and other emissions reduction strategies. Nor does it offer meaningful limits on greenhouse gas emissions, a prospect that would require the Senate to overcome the filibuster threshold. What the federal government could not muster itself to do, cities were tasked with executing.

Still, cities’ early gap-filling role vis-à-vis the federal government remains even as the Biden administration increasingly seeks to partner with them. Federal agencies operate in a rapidly evolving legal landscape, one in which Supreme Court decisions in cases like last week’s Loper Bright Enterprises v. Raimondo stand to vastly curtail their authority to regulate greenhouse gas emissions. Before Friday, the Environmental Protection Agency had meaningful latitude to determine how to carry out its mandate under the Clean Air Act. Now, the Supreme Court has ruled that federal agencies are not entitled to deference in their readings of ambiguously worded laws, effectively giving federal courts a veto over regulations of all kinds, climate included.

While it is too soon to know how the EPA will respond to Loper Bright, its actions now face significant additional scrutiny, further hamstringing the Biden administration’s ability to address climate change and other environmental crises. Environmental regulations were already in the crosshairs – just the day before Loper Bright was decided, the Supreme Court paused another major EPA rule that would limit power plant emissions traveling from “upwind” to “downwind” states, and two years ago the Court held unlawful major aspects of the Clean Power Plan, President Obama’s signature climate rule, citing a new “major questions doctrine” that shifted power from executive agencies to a paralyzed Congress. The Supreme Court will almost certainly continue to undermine any new climate rules coming from a Democratic president’s EPA, leaving the administration with few nationwide regulatory options.

If in 2025 Democrats hold the presidency and a majority in Congress, we may see an Inflation Reduction Act 2.0; if Trump wins, the regulatory vacuum will surely grow. Either way, the legal and political hurdles that stymie more tangible federal action will remain, and it is cities that will have to carry the torch on climate. Many will continue to implement existing IRA programs to develop and invest in carbon-free energy, vehicles, and buildings, and they’ll advance new laws and policies to protect residents from harmful air pollution and the rapidly oncoming impacts of climate change. In some places, their states will be essential partners while in others they’ll go it alone, but in neither scenario are they superfluous.

Cities’ autonomy and ambition propel them to legislate when Congress is logjammed, regulate when the EPA is legally constrained, and implement when the federal government is too unwieldy to make a real difference in communities on the ground. It is time to move on from the outdated notion that they play only a limited role in the federalist system; on climate, they are the leaders.

Amy Turner is the Director of the Cities Climate Law Initiative at the Sabin Center for Climate Change Law at Columbia Law School.